Medical Patents: Everything You Need to Know
A medical patent is a legal safeguard that provides security for an inventor’s medical idea or product against a subsequent similar idea or product. 3 min read
A medical patent is a legal safeguard that provides security for an inventor’s medical idea or product against a subsequent similar idea or product. When the government provides you with a patent — also known as an “intellectual property right” and a key driver for innovation — competitors are prohibited from making, using or selling the patented-protected product for a specific period of time. The U.S. Patent and Trademark Office (“PTO”) is the agency that has jurisdiction over patent approvals, and generally these patents last for twenty years.
In the medical field, patents can be filed for certain drugs developed by biotech pharmaceutical companies who wish to shield it from competition for a certain number of years. This lets the company earn profits on their drug before a competitor can develop a similar or generic version, which allows that company to be compensated for the research and development that went into that product. However, it also raises the price on the drug, which has been an issue for low-income patients and has caused these types of patents to be controversial.
Additional examples of medical patents include:
- Software patents
- Prosthetic patents
- Medical device patents
If a drug is protected by a patent, there are some instances where a different company can use the protected product. For example, the owner company can license its product out to a second company, making it possible for both companies to use the product while still providing the owner company with an overall benefit of having that patent.
Different Kinds of Patents
In the United States, there have historically been three general types of patents:
- Utility patents, which protects a product that someone can use, such as a machine or process'
- Design patents, which protect a product’s unique design
- Plant patents, which protect a new variety of a plant
However, in 1980 the U.S. Supreme Court ruled that there could also be a fourth type of patent: a living, man-made organism. This ruling helped make biotechnology firms so successful.
The Medical Patent Process
To obtain a medical patent, the owner company has to provide the government with enough research and data to get the drug approved by the U.S. Food and Drug Administration (“FDA”). This process can take eight years or longer. Once that patent expires, most of the brand name products vanish as competitors are able to sell generic versions at a much more affordable cost.
In order to avoid this, the owner company will typically file continuous patents in order to prolong the shelf life of the drug and prevent other competitors from doing this. This often leads to constant litigation by both the owner company and the competitor companies. For instance, the owner company can sue in court over the generic version of their patented drug, and the FDA is then forced to freeze the approval of the generic version for 30 months unless the case is settled within that time frame. Because this could be very detrimental to the competitor companies, they try and sue the owner company to invalidate those continuous patents.
Patent Agents and Attorneys
Because of the oftentimes complicated process of obtaining a medical patent and the possible ensuing litigation, there are two players in the patent field that are important to know: patent agents and patent attorneys.
Patent agents are government-licensed professionals who provide official opinions on patents and help inventors prepare and file their application. They can help search for similar patents, revise rejected patents, or help write legal claims of ownership. Patent agents can perform many of the same duties as a patent attorney, with the exception of representing the inventor in court.
A patent attorney is a lawyer who specializes in intellectual property and patent law. In addition to passing the standard bar exam, patent attorneys must pass a special exam, known as the “patent bar exam” to obtain a license to advocate for their clients before the Patent and Trademark Office. They also need to have some other expertise related to the patent field, including computer science or biotechnology.
If you need help with filing a medical patent or general advice about patents, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.